At the April 2008 trial, the jury acquitted defendant of count five, convicted him of the lesser-included offense of reckless manslaughter on count two, and convicted him on all other counts. On June 12, 2008, the court sentenced defendant to a forty-five-year term of imprisonment on the felony murder conviction with an 85% period of parole ineligibility and a five-year period of parole supervision upon release under the No Early Release Act, N.J.S.A. 2C:43-7.2; and to concurrent four-year terms of imprisonment on the convictions for conspiracy to distribute a CDS, tampering with a witness, and hindering apprehension. The court merged the convictions on the remaining counts with the conviction on count three, felony murder, and imposed appropriate fines and penalties.

Defendant asserts the following trial and sentencing errors for our consideration on appeal:

POINT I

THE TRIAL JUDGE ERRED IN ADMITTING INTO EVIDENCE PORTIONS OF THE CO-DEFENDANT'S OUTOF-COURT STATEMENT TO THE POLICE, VIOLATING DEFENDANT'S RIGHTS UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS. (U.S. CONST. AMENDS. VI AND XIV; N.J. CONST., ART. I. PAR. 10).

POINT II

AS WAS THE BASIS FOR REVERSAL IN STATE V. GONZALEZ, THE TRIAL JUDGE CHARGED THE JURY ON ATTEMPTED THEFT AS A BASIS FOR ROBBERY, BUT DID NOT EVER DEFINE EITHER THE ACTUS REUS OR THE MENS REA ELEMENTS OF A CRIMINAL ATTEMPT. (Not Raised Below).

POINT III

THE JUDGE'S INSTRUCTIONS AFTER THE REPLACEMENT OF A JUROR, DURING DELIBERATIONS, WERE MISLEADING AND NOT IN CONFORMANCE WITH CASELAW. (Not Raised Below).

POINT IV

THE DEFENDANT'S SENTENCE IS EXCESSIVE

We find merit in defendant's second point and therefore reverse his conviction for felony murder and robbery. We affirm all other convictions.

I.

The State's trial evidence included testimonial evidence from the police investigators and defendant's acquaintances, and circumstantial evidence of cell phone calls made or received by defendant. According to the State's evidence, on February 14, 2007, at 12:37 a.m., Jersey City Police Detective Scott Rogers received radio transmissions of "shots fired" and "a man down" in the vicinity of Waverly and Baldwin Streets. Responding to the scene, Rogers saw a male, later identified as the victim, Ariel Cruz, lying facedown with his upper body on the pavement and his lower body on the blacktop portion of Waverly Street. Cruz was unconscious and mortally wounded from a single gunshot to the left hip.

When emergency medical technicians attempted to move Cruz onto a gurney, a Ziploc freezer bag containing six smaller plastic bags of marijuana fell from beneath his jacket. Cruz was transported to the hospital where he died without regaining consciousness. Rogers remained behind to supervise a search of the area for evidence. During the search, the police recovered a nine-millimeter shell casing and found two cell phones near Cruz's body, both of which belonged to him.

The police also canvassed the neighborhood and found two witnesses who had heard a gunshot and had seen individuals leaving the scene, but could not identify them. One of the witnesses testified at trial that after hearing a gunshot she looked through her window and saw two men, one with a gun in his hand, running on Waverly Street. After losing sight of the men she looked in the opposite direction and saw another man holding his left side and limping across the street toward a red apartment building. She described the two fleeing men as being approximately the same height. Subsequent testimony disclosed that Roberto Figueroa*fn2 was approximately six feet tall, much taller than defendant.

Detective Sean O'Leary of the Hudson County Prosecutor's Office directed the homicide investigation. The investigators learned from Cruz's cell phone data that defendant had called Cruz shortly before the shooting. The detectives contacted defendant's mother, and she and defendant went to the homicide division at approximately five o'clock that afternoon. Defendant told detectives he was supposed to meet Cruz at approximately 10:30 the previous night to purchase $250 worth of marijuana, but Cruz never appeared, so he returned home.

O'Leary obtained defendant's cell phone records and identified calls and direct "chirps"*fn3 between defendant and Cruz from 12:30 to 12:35 a.m. on February 14, 2007; and calls between defendant's cell phone and a cell phone belonging to Efrain Medero at 12:39 and 12:43 a.m. Investigators also obtained surveillance video of Medero driving past a Dunkin' Donuts store near the scene at 12:43:38 a.m.

Megan Gangadeen, defendant's girlfriend, lived with defendant, Roberto Figueroa, and Roberto Figueroa's girlfriend, Tosha Rivera. Gangadeen had once seen defendant with what she believed was a nine-millimeter handgun that he kept in the bedroom, though she did not see it on the day of the shooting. On the night before the shooting, Gangadeen overheard defendant and his friend, Noel Figueroa, planning to rob a marijuana dealer named Ariel. She later heard defendant and Roberto Figueroa discuss the robbery and say that a man named Efrain was going to drive the car. Defendant was going to call a marijuana dealer and Roberto Figueroa was going to "come out of nowhere" and "rob him." According to Gangadeen, defendant intended to sell the marijuana to pay off a lawyer.

Later that night, defendant and Roberto Figueroa left the apartment to meet the driver. When they returned about an hour later, defendant was crying and angry and said Roberto Figueroa "shot him" in the buttocks. The next day defendant's mother called and told Gangadeen that the victim of the shooting had died, and that detectives were looking for defendant. Defendant told Gangadeen either not to say anything to the police, or to tell them he was at home playing X-Box.

Efrain Medero, who had known defendant for approximately two years, drove him and Roberto Figueroa to and from the robbery scene. Medero testified that defendant phoned him around 9:00 p.m. on the night before the shooting and asked for a ride "to the Heights." Medero drove to defendant's apartment and when he entered he overheard defendant talking to Noel Figueroa about robbing Cruz. Noel Figueroa backed out of the plan to rob Cruz because Cruz often had a dog, and dogs scared him, but Roberto Figueroa said he would go. Roberto Figueroa and defendant left the room and returned with hooded sweatshirts, and then the three drove to ...

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